Transitional Justice in the Asia-Pacific (9 page)

Timing.
Deterrence and normative socialization arguments suggest that increased enforcement mechanisms in the international system and the spread of norms in favor of accountability, rather than amnesties, have led to an improvement in human rights. The stability-with-accountability approach suggests that increased enforcement mechanisms and the spread of norms must be combined with amnesties in order to have a positive effective.
This is supported by the evidence that a clear shift away from amnesties has not accompanied the global accountability trend.
Figure 1
shows that the use of amnesties has fluctuated: while the numbers of new amnesty laws reached their highest level in the early 1990s, and have declined ever since, existing amnesty laws continue to be in effect in many countries as shown in
Figure 2
. Very rarely have amnesty laws been repealed, though they have been circumvented in many cases. To date, therefore, we do not have incontrovertible evidence that trials have replaced amnesties and played a role by themselves in bringing improvements in human rights on their own. A compelling argument that could be made regarding timing, however, is that human rights advocates may not mobilize behind early trials, understanding that without a generational shift in the judiciaries these trials may render unjust verdicts. Political and judicial leadership behind trials is likely to emerge over time and unlikely to be present in the early years of the transition.

Types of Amnesties.
Another explanation for the findings involves the types of amnesties that states implement. For example, recent amnesties may be more likely to be compatible with international law to avoid the International Criminal Court, ad hoc tribunals, or domestic legal challenges. They might exclude particular crimes absolutely prohibited by treaties, such as genocide, crimes against humanity, and torture. In the
interest of stability, they might limit their scope to include only top officials behind the crimes, to prevent catalyzing the entire military against them, or only lower ranking officials to protect against mobilization by the former top leaders. The challenge to the justice balance approach, therefore, is that not all amnesties will effectively work with trials to bring about improvements in human rights. The analysis of the justice balance cases, however, suggests a different explanation for the compatibility between trials and amnesties.

First, strong evidence supports the assumption that amnesty laws provide some form of stability in the early years of transition. In some cases, self-amnesties allowed for extrication of the authoritarian regimes, paving the way for transition (e.g., Argentina, Chile, and Peru). Democratic governments subsequently accepted these amnesties through executive decree or legislation (although not before a trial of the regime leaders in the case of Argentina). In other cases, peace accords with amnesties ended civil conflict and permitted the transition to peace and democracy (e.g., El Salvador and Guatemala). In a third set of cases, democratic governments adopted decree laws that prevented prosecution or pardoned convicted authoritarian leaders in the interest of “national reconciliation” or “political stability” (e.g., Greece, South Korea, and Uruguay). While perhaps unnecessary, based on an exaggerated fear of authoritarian reversal, or designed as a façade to protect political alliances, amnesty laws gave fragile democratic governments flexibility to negotiate the transition.

More importantly, amnesties did not block subsequent trials. Civil society groups and courts challenged the amnesty laws, finding legal loopholes to circumvent them (i.e., Chile, El Salvador, Guatemala, Honduras, and Peru) or overturning them (i.e., Argentina, Bangladesh, and Uruguay) to bring perpetrators to trial for past human rights abuses. In other words, trials often played a key role in challenging and weakening and ultimately undermining amnesty laws. Indeed, in many cases amnesty laws continue to have legal standing or remain de facto, even when some trials continue to hold perpetrators accountable. There
are only three known cases in which amnesty laws have been annulled. Two of them are in Latin America (Argentina, Uruguay); the third one is in the Asia-Pacific (Bangladesh). Thus, evidence suggests that despite the prevalence of amnesties, and even blanket amnesty laws, trials may still provide the necessary accountability to improve human rights.

Context.
Improvements in human rights may also be due to other contextual factors associated with the transitional state and not the specific transitional justice choices that these states make. Some scholars view the improvements in human rights associated with transitional justice as endogenous. Particular factors may drive transitional justice choices
and
improvements in human rights. In other words, human rights improvements may not result from the transitional justice mechanism adopted, but rather from some other factors that also shape transitional justice decisions. In statistical language, transitional justice may be correlated with the error term.

An additional means to address this question is to track the changes in human rights measures of the countries that utilized trials and amnesties to examine key patterns. Initial findings do not confirm any clear patterns. The team did confirm, however, that amnesties and trials are not implemented only in states where human rights improvements have already occurred. In addition, the use of amnesties does not bring lower scores for human rights. Indeed, more often than not, human rights improvements occur at the time of amnesties. Amnesties cannot be assumed to have brought about those improvements, but the pattern shows that they have not harmed the process of improving human rights.

In short, regardless of the context, or starting point in terms of level of human rights violations, amnesties coupled with trials tend to be associated with improvements. Those improvements do not occur exclusively in countries with low levels of human rights protections or in those countries with already high levels of human rights improvements, as some scholars might assume.

Region
.
The regional explanation focuses on a potential bias in the results due to a prominence of Latin American cases that utilize amnesties
and trials. Eight out of thirteen of the countries that have the trial-amnesty combination and improvements in human rights are Latin American. When the team analyzed those countries qualitatively, it observed that trials have occurred despite the authoritarian regimes’ self-amnesty and early democratic governments’ acceptance of those or adoption of other blanket amnesty laws. Amnesties seemed to offer new democracies a means by which they could protect themselves from potential threats from the old authoritarian forces. Amnesties also provided the means to negotiate peace in the Central American wars. Amnesties, however, did not prevent accountability in most of these cases. Our initial analysis of these cases show that a combination of factors allowed for trials to occur even in the context of far-reaching amnesty laws. Components that facilitated trials include mobilized victim-survivors and human rights communities, lower court decisions that tested the strength of the amnesty law, and Supreme Court decisions. The
Inter-American Court of Human Rights has also played a much more significant role than the other regional courts around the world in adjudicating the amnesty laws of member countries.

In sum, the justice balance approach shows that despite domestic and global pressure and their success in increasing the number of human rights trials around the world, amnesties continue to exist. These amnesties have not prevented accountability, however. Indeed, the justice balance findings suggest that where amnesties and trials coexist, with or without truth commissions, countries are likely to experience improvements in human rights.

What do these theoretical approaches offer to an understanding of transitional justice in the Asia-Pacific region, and how do patterns in the Asia-Pacific region help advance our theoretical and empirical understandings?

Regarding the adoption and diffusion of trials, our work suggests that compared to other regions, Asia has made less use than Latin America of the transitional justice mechanisms considered here: transitional human rights trials, truth commissions, and amnesties. This is in large part the result of the fewer number of transitions to democracy in the region rather than any particular reluctance to carry out transitional justice. When we include human rights prosecutions and truth commissions in non-transitional countries in Asia, an important accountability trend seems underway in the Asia-Pacific region – a trend that has increased in importance in recent years. This new data and the chapters in the volume reveal that many more and diverse transitional justice responses are happening in the region than previously understood.

How do we account for these developments? First, many of the transitional justice experiences in the region are relatively recent and thus few previous studies have been published. Second, much of the work on transitional justice in the region has focused on single studies of countries rather than on comparative studies within the region or among regions. Single-country studies, or studies of single tribunals, may focus on the many ways in which such experiences fall short of the ideals of justice held by scholars or civil society organizations. For example, the problems with the
Dili Special Panels for Serious Crimes (SPSC) in East Timor were significant. Nevertheless, when compared to the very few prosecutions in the related hybrid tribunal in Cambodia, the SPSC appears to have been a very active tribunal, in terms of the number of indictments, prosecutions, and convictions. On those counts, it compares positively to international tribunals in other regions. But, if we evaluate it in light of whether or not high-level officials who planned the human rights violations were held accountable, it would be seen as less successful. Some of the transitional justice cases are happening in particular subregions of countries (such as Aceh, Indonesia) and thus may not be recorded in the sources examining national-level phenomena. Third, many interesting transitional justice activities are taking place in the small Pacific Island countries with populations too small to usually be coded in global
databases (such as the Solomon Islands; see Chapter
6
). Finally, Asia-Pacific countries are making use of other types of transitional justice mechanisms – such as customary justice – that have not been studied systematically. Indeed, in our recent study of twelve countries identified as having adopted customary justice to address past human rights violations, four of the countries are in Asia Pacific: East Timor, Fiji, Papua New Guinea, and the Solomon Islands.
²⁶

In other words, transitional justice in the Asia-Pacific region has been moving ahead. It has done so even when some of the theoretical explanations for the advance of accountability are absent from the region. In particular, the Asia-Pacific region lacks the regional human rights regimes and courts that have been important in Latin America, Europe, and Africa for furthering processes of transitional justice and accountability. A number of Asian Pacific countries have ratified
the Rome Statute, but most of the human rights violations considered in this volume took place before ratification,
so the International Criminal Court is not able to play a role in these cases, as it has in Africa. But, because diffusion processes happen first within regions, and the single biggest predictor of the adoption of human rights prosecutions and truth commission is their use by neighboring countries, it is likely that these diffusion processes have also led to some snowball effects in Asia. The important innovations in countries such as South Korea, Indonesia, and East Timor (see Chapters
3
,
5
, and
7
) may have served as regional models that were
later emulated by other countries in the region. If so, we should expect to see more accountability in the future in the region, as the diffusion processes continue.

In terms of the impact of the transitional justice mechanisms already in use, there is not yet systematic evidence for analysis in the Asia-Pacific region. Based on our previous research, we would expect that countries that have made use of prosecutions to see more improvements in their human rights situation than countries that have not used such prosecutions. The accountability-with-stability approach would expect improvements in human rights measures if the countries also adopt amnesty laws. We are still uncertain about the effects of truth commissions, when used alone, although we expect that, if used together with trials and amnesties, they are likely to be more effective than when used on their own. Only with time and future research will we be able to determine whether the combinations that have brought positive outcomes for human rights elsewhere will have a similar impact in the Asia-Pacific.